'Clean and healthful environment'

Montana's constitution could stop a huge mine

Replica of the original Montana Constitution (left) and the one ratified in 1972 (right), in which a clean and healthful environment is called an inalienable right.

Rancher Art Hayes Jr. at work on the Tongue River Valley ranch in Montana his family homesteaded in the 1880s. It’s threatened by the proposed Arch Coal mine at nearby Otter Creek, and a rail line that would serve it.

Gentle spring and early summer rains fell in southeastern Montana for an astonishing 30 out of 60 days; by midsummer, 66-year-old Art Hayes Jr. was working close to exhaustion, putting up a bumper crop of hay. His Black Angus cattle have been growing fat in the sea of knee-high grass that ripples across his rugged ranch along the Tongue River and Hanging Woman Creek.

Yet the ranch's future looks anything but good. Last March, the Montana State Land Board decided to lease some 8,300 publicly owned acres along Otter Creek, about 30 miles south, for development of a massive coal mine. Hayes fears it will ruin the ranch his great-grandfather helped start in 1884, and harm the whole Tongue River Valley.

"Pretty soon we're not going to have an agricultural place," Hayes says. "We're going to have an industrial place."

The proposed mine would be served by a new 121-mile railroad that would cleave Hayes' ranch in half, leveling the terrain for the rail bed with massive earthen berms across creeks and coulees and cutting through the hills. "This is one of the last places in the country where you can step outside at night and not hear a manmade sound," Hayes says. "Imagine what that railroad's going to do -- just the sound alone."

Hayes has fought coal development and the railroad for decades. Now, as his last hope, he's clinging to four words in the Montana Constitution: "Clean and healthful environment."

It's a distinctly Montana phrase. Delegates to the state's 1972 Constitutional Convention liked it so much they used it twice. They listed a clean and healthful environment as an inalienable right, up there with liberty and property ownership. They also assigned all Montanans a duty to "maintain and improve a clean and healthful environment for present and future generations." Convention transcripts show the delegates were determined to write the strongest environmental provisions of any constitution in the U.S. And Montana voters approved the Constitution with that wording.

About a dozen states mention the environment in their constitutions, but none as explicitly as Montana. "It means I have good water and clean air and (should) be permitted to live my life without having to worry about somebody else's pollution," Hayes says.

Montana environmentalists chant "clean and healthful environment" like a mantra, as if repetition might fulfill the promise of making the state one place where environmental harm is flatly illegal. "The Constitution is pretty clear," says state Senate Majority Leader Carol Williams, a progressive Democrat representing Missoula. "It's hard to get around it. That's the beauty of it."

But asserting the right to a healthful environment is easier than enforcing it. It's as much a political issue as a legal one. Many politicians, both Republican and Democratic, oppose a literal interpretation of the phrase, and Montanans of all stripes argue over its meaning.

Montanans created this constitutional right after a century of domination by the Anaconda Copper Mining Co., which left a legacy of mutilated landscapes. They were also inspired by the nationwide surge of the environmental movement in the 1970s. But then the constitutional right largely lay dormant for more than a quarter-century, while a series of Republican governors and legislative sessions weakened many of Montana's environmental laws, which also originated during the 1970s.

"Lawyers are cautious and didn't want us to bring a (court) case until they had the most favorable facts possible," says Jim Jensen, head of the Montana Environmental Information Center, a watchdog on state policies. Finally, in the late 1990s, when the Legislature carved out an exemption to a water-quality law, allowing a mining company to dump wastewater into the Blackfoot River's headwaters, Jensen's group spearheaded a lawsuit to invoke the right to a clean and healthful environment.

In that landmark case, a district judge ruled in favor of the state, but in 1999, the Montana Supreme Court justices unanimously sided with environmentalists, declaring a clean and healthful environment a "fundamental right" that can't be infringed without proof of a compelling state interest -- one addressed in the "least-onerous" way. The Supreme Court also said that the right exists to prevent environmental harm, not merely to fix existing problems.

"Our constitution," the court declared, "does not require that dead fish float on the surface of our state's rivers and streams before its farsighted environmental protections can be invoked." Jensen says the ruling has broad implications, compelling the state government "and polluting corporate interests to do far more in identifying and trying to prevent pollution than they ever did before."

But as in most court rulings, there's a loophole -- the allowance that a compelling state interest can override the environmental right. That creates uncertainty. In two subsequent major cases, in which various people and local governments went through the expense and hassle of asserting their right to rein in polluters, the Montana Supreme Court sidestepped the constitutional issue; in a third case, it delayed acting, and the parties ultimately settled.

Now, environmentalists are asserting the right against another corporate giant and a lineup of powerful politicians, with a pair of lawsuits that could help rancher Hayes. They're challenging the State Land Board's decision to lease the state land near Otter Creek for possible coal mining. Arch Coal Inc., based in St. Louis, paid the state $85.8 million up front for a 10-year lease on the state parcels, which contain an estimated half-billion tons of coal, intermingled with private parcels where the company also has coal leases. Arch wants to begin strip mining within the decade.

Democratic Gov. Brian Schweitzer supports the mine and railroad proposal, saying it would generate more than $5 billion in state royalties and taxes over 25 years. Schweitzer is a member of the Land Board and voted for the lease; so did the secretary of State and state auditor, who are also Democrats, adding up to a majority of the five-member board.

While the lawsuits differ in some specifics, the plaintiffs -- the Northern Plains Resource Council, National Wildlife Federation, the Sierra Club and Jensen's group -- all charge that the lease violates Montanans' right to a clean and healthful environment because the Land Board did not consider environmental consequences. They're also indirectly challenging the Legislature, which in 2003 exempted some leases from the state law that requires environmental impact statements. Environmentalists say the mine and railroad would disrupt groundwater and wildlife; pollute water, land and air; and pump billions of tons of climate-changing carbon dioxide into the atmosphere.

"The decision to lease Otter Creek constitutes an irreversible commitment of resources with significant environmental consequences," says Jack Tuholske, a lawyer handling one lawsuit. "The government can't deny itself the opportunity to look at the environmental ramifications."

Gov. Schweitzer says the groups are jumping the gun, suing over environmental worries, not actual harm to the environment. "All Arch Coal has is an exclusive right over the next 10 years to apply for a permit to mine for coal," he says. He promises a thorough environmental analysis before mining is permitted. An Arch Coal spokeswoman offers similar reassurance that the company must secure permits first. But the company has announced publicly that "the coal lease will give Arch the right to mine ..."

The lawsuits will be argued in district court over the next year or so, but they'll probably also end up in the Montana Supreme Court. In some ways, the uncertainties have increased since the 1999 landmark case: Five of the seven justices who made that ruling have left the Supreme Court, including Terry Trieweiler, who wrote the opinion. Now in private law practice, Trieweiler predicts that no future court will so literally interpret the environmental right. "As people on the court come and go (the environmental right is) going to be eroded a bit," he says. "It's not going to be strengthened." But, he adds, it'll remain an important protection against legislative and executive irresponsibility.

Right-wing politicians and activists warn that if the constitutional right is enforced broadly it would allow "environmentalists to sue anybody to shut down development in Montana," in the words of John Sinrud, a former Republican legislator from Bozeman and co-founder of Western Tradition Partnership, a resource-development and property-rights group.

Hayes hopes his right to a clean and healthful environment is even half as strong as such critics contend. "This is fragile land," he says. "It's not good mining country. They're not going to be able to reclaim that land. The long-term effects will be tremendous." He's talking about the Tongue River Valley, but he might just as well be talking about the Montana Constitution. Whatever the courts decide on Otter Creek, the long-term effects on Montana could be tremendous.